S.C.C. finds police must have a breathalyzer with them when demanding a breath sample.
Friday, April 21, 2023 -
In R. v. Breault, 2023 SCC 9 — “On April 2, 2017, two police officers were informed by forest trail patrollers that an individual who was intoxicated was driving an all‑terrain vehicle (“ATV”). At about 1:35 p.m., the police officers arrived at the scene, saw B and stopped him as he was about to leave the scene on foot. One of the officers noticed that B’s eyes were bloodshot and that his breath smelled strongly of alcohol. At 1:41 p.m., that officer radioed for an approved screening device (“ASD”) to be brought to him, since the officers did not have one in their possession. Once he had requested an ASD, the officer demanded that B provide forthwith a breath sample pursuant to s. 254(2)(b) of the Criminal Code. Starting at 1:45 p.m., B refused three times to provide the requested sample on the ground that he had not been driving the ATV in question. He was arrested for refusing to comply with a demand to provide a breath sample contrary to s. 254(5) Cr. C. The Municipal Court judge held that the validity of the demand made by the police officer did not depend on the presence of an ASD at the scene. He convicted B of the offence of refusing to comply with a demand made under s. 254(2) Cr. C., contrary to ss. 254(5) and 255(1) Cr. C. B’s appeal to the Superior Court was dismissed, but his subsequent appeal to the Court of Appeal was allowed. The Court of Appeal found that, in order for a demand to be valid, the peace officer must be in a position to demand that the driver provide a breath sample forthwith, which means that the officer must have immediate access to an ASD. The court was of the view that the demand made to B by the police officer was invalid due to the absence of an ASD. It reversed the lower courts’ judgments and directed that a judgment of acquittal be entered."
The SCC (8 :0) dismissed the appeal.
Justice Côté wrote as follows (at paras. 20, 30, 31, 35, 36, 52, 66, 68):
" The resolution of this case lies in the answer to the following question: Does the validity of a demand made by a peace officer under s. 254(2)(b) Cr. C. require that the officer have immediate access to an ASD at the time the demand is made?
According to the grammatical and ordinary meaning of these words, a driver detained under s. 254(2)(b) Cr. C. must “supply” a breath sample to the peace officer “immediately” or “without delay”. In addition, the provision states that the sample “will enable a proper analysis to be made” by means of an ASD.
Therefore, and contrary to what the Crown argues, the word “forthwith” qualifies the demand that drivers must obey. Stopped drivers “are bound by s. 254(2) to comply immediately” (Woods, at para. 45). They are not free to provide a sample when they see fit.
Although a stopped driver is being detained at the first step of the detection procedure, the driver has no right to counsel; this right exists only at the second step (Woods, at para. 31). This is the case because the word “forthwith” implicitly limits the right to counsel guaranteed by s. 10(b) of the Charter. This is a condition for the application of s. 254(2)(b) Cr. C.; since the detained driver must provide a breath sample forthwith, the driver may not consult counsel before doing so. The Court has recognized that this limit on s. 10(b) of the Charter is justified under s. 1 (Thomsen, at p. 653; Woods, at para. 30) precisely because the detention is of very brief duration (Bernshaw, at para. 23). The more flexibly the word “forthwith” is interpreted, the less the recognized justification for limiting the right to counsel holds up.
Furthermore, as I said above, a driver who refuses or fails to comply with a demand is subject to criminal sanctions under s. 254(5) Cr. C. It is therefore not an offence to express an intention to refuse once the ASD arrives at the scene; refusing without reasonable excuse to provide forthwith a sample is what constitutes the offence (Woods, at paras. 14 and 45). This suggests that compliance must actually be physically possible.
That being so, what must be determined is whether the absence of an ASD at the scene at the time a demand is made under s. 254(2)(b) Cr. C. is an unusual circumstance that justifies a more flexible interpretation of the word “forthwith”.
Nothing in s. 254(2)(b) Cr. C. indicates that Parliament intended to create the presumption of validity proposed by the Crown. That being said, peace officers who have no ASD with them when they stop a driver who is suspected of having alcohol in their body are not entirely without options. They can require the driver to perform coordination tests, as permitted by the current s. 320.27(1)(a) Cr. C. These officers also have common law powers to check for sobriety. Where doing so is reasonable and necessary, they can, among other things, question a driver who is lawfully stopped about prior alcohol consumption or ask the driver to perform physical tests other than those provided for in the Criminal Code (R. v. Orbanski, 2005 SCC 37,  2 S.C.R. 3, at paras. 43‑49; Leclerc v. R., 2022 QCCA 365, at paras. 45‑48 (CanLII)).
The Crown has not shown that there was any unusual circumstance that would account for the absence of an ASD at the scene and thereby justify a flexible interpretation of the immediacy requirement. In fact, the appellant is unable to explain why Constables Atkins and Côté‑Lemieux did not have an ASD in their possession. The demand made by Constable Atkins was therefore invalid. Accordingly, the respondent’s refusal did not attract criminal liability, and the acquittal entered by the Quebec Court of Appeal must be upheld."
Note: The summary and body are drawn from Eugene Meehan’s SupremeAdvocacy Weekly Updates for the Law Community.